MEDIA SERVICE AGREEMENT

THIS MEDIA SERVICE AGREEMENT (“Agreement”), is entered into by and between Prime Media Network, LLC a Delaware limited liability company d/b/a “Prime Media” and/or “Content Ready” (collectively “Prime Media”) at 5666 La Jolla Blvd, #206, La Jolla, CA 92037 and the person or entity registered herewith on and through Prime Media Website or otherwise identified on the accompanying or subsequent Insertion Order or Work Order (“Client”) (singularly “Party” or collectively “Parties”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged.  In the event that Prime Media is required to digitally sign or agree to additional terms during the provision of Services on behalf of Client, both Parties agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered.  Therefore, any terms which appear on any website or platform not owned and operated by Prime Media shall be disregarded and deemed ineffective, being superseded by this Agreement.

This Agreement and the accompanying and subsequent Insertion Order(s) (“IO”) or Work Order(s) shall define the Prime Media and Client’s obligations with respect to Prime Media and Content Ready services including; Subscriber Acquisition, Content Creation and Brand Management Services (Collectively “Services”).  Each IO or Work Order submitted by Client shall incorporate this Agreement without further reference.  Each IO shall be a separate and distinct contractual obligation on the part of the Parties. In the event of a conflict between an IO or Work Order and this Agreement, this Agreement shall prevail and govern the Parties relationship. In the event that Prime Media is required to digitally sign or agree to additional terms when providing Services the Parties agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered, in order to view stats and/or access creative or other campaign materials or details.  Therefore, any terms which appear digitally shall be disregarded and deemed ineffective as to Prime Media.

  • Terms Applicable to Subscriber Acquisition and Lead Generation Services

To the extent an IO orders access to participate in Prime Media subscriber acquisition and lead generation campaigns as set forth on an applicable IO (“Leads”) as defined in an applicable IO, then the following terms and conditions shall apply.

  1. Payment Terms. All payment terms shall be set forth in the applicable IO.
  2. Prime Media shall transmit Leads to Client using the delivery method agreed upon between the Parties or as specified in the applicable IO.  Notwithstanding any other provision in this Agreement, Prime Media does not guarantee the frequency or number of Leads delivered to Client.
  3. Ownership and Use of Leads. Prime Media retains sole ownership of all Leads until such time as Client purchases such Leads.  Upon purchase, ownership of such Leads shall be held jointly by Client and Prime Media.  In the event Client rejects or returns such Lead (“Unsold Lead”), Client shall not access, store, transmit, or utilize the Unsold Lead for any purpose including marketing (including internal or trigger marketing).  The preceding prohibition of use of Unsold Leads includes but is not limited to sharing, transferring, or licensing such Leads with third-party marketers, list managers, lead aggregators, data brokers, or any other third-parties.
  4. Lead Security. Client will maintain, at all times during the term of this Agreement,  information security practices designed to protect the physical and technical security, confidentiality, and integrity of consumer information provided within the Leads, including without limitation, encryption of all data at a secured facility including non-public personal information, sent by Prime Media to Client or by Client to any other party.  In the event that any Lead or any part thereof has been disclosed or revealed to, or accessed by, any unauthorized person or to any unauthorized third-party, whether intentionally or inadvertently, by means of a breach of Client’s  security processes or otherwise (a “Security Breach”) Client shall immediately (and in any event, orally within three (3) business days) after it becomes aware of such Security Breach.
  5. Representations, Warranties and Covenants Pertaining to Subscriber Acquisition and/or Lead Generation Services.
    1. Prime Media Representations and Warranties.  Prime Media represents and warrants to Company that:
      1. It has full power and authority to enter into this Agreement and it is a duly formed United States entity, in good standing, with a United States principal place of business;
      2. All Leads transferred to Client was/will be obtained, collected and compiled on servers located in the United States, including any and all data collected from consumers located outside of the United States;
      3. The Lead was and will be obtained, collected and compiled using methods that comply with all applicable laws, rules and/or regulations including, without limitation, the CAN-SPAM Act of 2003, Federal Trade Commission Act, California Business and Profession Code and all state and federal privacy laws, rules, and regulations;
      4. NO OTHER REPRESENTATIONS AND WARRANTIES BY PRIME MEDIA.  EXCEPT AS SET FORTH IN THIS SECTION 2.1 , PRIME MEDIA MAKES NO WARRANTY WHATSOEVER AS TO THE TECHNOLOGY, DATA, BEHAVIORAL AGGREGATION USE OR THE LEAD INFORMATION, EITHER EXPRESS OR IMPLIED.  ALL SERVICES ARE PROVIDED BY PRIME MEDIA ARE ON AN “AS IS” BASIS.  PRIME MEDIA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WHICH COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY DEALING OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY REGARDING CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE.  PRIME MEDIA EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY PERTAINING TO DELIVERABILITY OR CONFIRMATION RATES. 
    2. Client represents and warrants to Prime Media as follows, and agrees to perform the following covenants:
      1. Client shall comply with all applicable Federal, State and local laws and regulations in connection with the operation of its business including but not limited to use of the Leads and the performance of its obligations under this Agreement.
      2. Client shall only use Leads for lawful purposes of promotion of Client’s business or its clients’ business.  Client shall not and is expressly prohibited from selling, assigning or otherwise transferring any Leads to a third-party excepting therefrom a vendor who assists Client with its marketing or email suppression file maintenance and/or use.  Client represents and warrants that it shall not utilize such Lead for commercial enterprise or marketing for any reason until such Lead is purchased.
      3. Client is not a broker and shall not resell the Lead to third-parties for further distribution.
      4. Client shall use the Lead in compliance with all applicable laws, rules and regulations governing the same including but not limited to the CAN SPAM ACT of 2003, Federal Trade Commission Act, California Business and Profession Code and all state and federal privacy laws, rules, and regulations.
      5. EXCEPT AS SET FORTH IN THIS AGREEMENT, CLIENT MAKES NO OTHER REPRESENTATIONS AND WARRANTIES.  CLIENT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WHICH COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY DEALING OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY REGARDING CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE.
  1. Terms Applicable to Content Creation and Brand Management Services by Content Ready.

To the extent a Work Order includes Content Ready Services to create or manage content on Clients Website(s) as defined in an applicable Work Order, then the following terms and conditions shall apply.

  1. Available Content Ready Services defined.
    1. Content Creation” shall mean the development of marketing topic, writer selection, editing, fact checking and final production of commercial content as a work for hire with all intellectual property rights vested in and owned by Client.
    2. Content Management” shall mean the organization Client’s content calendars, images, formatting and posting to maximize consumer interest, engagement and monetization.
    3. Content Syndication” shall mean distribution and republishing of copyrighted content created, licensed or owned exclusively by Content Ready available for syndication through RSS feeds on a per feed, CPM or revenue sharing basis as defined in a Work Order.
    4. Brand Management” shall mean assistance to Client in the day-to-day management of the Client website, webpages and/or Newsletters to include publication, sending and client reporting as directed and approved by Client.
    5. Content Monetization” shall mean placement of third party paid advertising in and around client content, client website or webpages as directed and approved by Client.

2.1. Content Creation Services Terms.

  1. Services.  Content Ready shall work with Client to develop content for Client’s Web applicable publication(s). Client content creation services may include the development of headlines, subject lines, articles, posts, comments, meta data, and tags as set forth in any applicable Work Order (collectively “Content”).
  2. Representations and Warranties.  Content provided by Content Ready will be primarily original work excluding credited quotes and references, is not owned by any third party, and has not been obtained by unlawful means, has not been previously published including but not limited to printed or electronic means and that the publication of the article will not violate an intellectual property right of any third party.
  3. All Articles purchased by Client under this Agreement shall be considered works for hire, and further, to the extend any intellectual property right does not pass pursuant to a work for hire, Content Ready, Its staff, writers, editors and contractors  hereby assigns to Client all rights to publish the Article in any tangible medium of expression, now known or later developed, from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, including without limitation the rights to archive, republish, edit, repackage or revise any Article in any manner as Client sees fit.
  4. EXCEPT AS SET FORTH IN THIS Section 2.1, CONTENT READY MAKES NO OTHER REPRESENTATIONS AND WARRANTIES AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WHICH COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY DEALING OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY REGARDING CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE.

2.2 Content Management Terms.

  1. Services.  Content Ready shall work with Client in the development, placement, and organization of Client content on Client’s digital media.  Services include sourcing, formatting, image selection and posting on Client’s Website and newsletters.  Such Services may be undertaken with Client original content, Content Creation by Contact Ready or Content lawfully obtained through licensed syndicated RSS feeds.
  2.   Compensation. Client agrees to pay Content Ready a management fee as set forth in the applicable Work Order.

2.3 Content Syndication.

  1. License Grant. Subject to the terms of this Agreement and the applicable IO, Content Ready hereby grants you, during the Term, a revocable, nontransferable, non-sublicensable, nonexclusive license to display on your registered website, webpage or newsletter (collectively “Client Property”) the headlines, active links, or other source identifiers, and other information or materials, including any promotional taglines that you specifically select to receive from Content Ready Syndication (collectively, the “Content”) through the Content Syndication provided that you do not alter, edit, or delete such Content.  This License may restrict, suspend or terminate your access to any aspect or all of the Content Syndication Service at any time without liability. Content Ready reserves the right to modify the Content or its services at any time within its’ sole discretion. Client agrees that the Content Syndication Service availability is subject to change at Content Ready’s sole discretion.
  2. Reservation of Rights.  The Content Syndication Service is protected by the copyright laws of the United States and international copyright treaties. As between the parties, title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof, shall remain in Content Syndication. In addition, any additional programming or technology provided by Content Syndication in connection with the delivery of the Content Syndication Service or otherwise shall remain the sole property of Content Creation and no part thereof shall be deemed assigned or licensed to you. All rights to the Content and Service not expressly granted to Client in this Agreement remain with Content Ready.
  3. Restrictions on Use. Except as expressly set forth hereinabove, and/or unless otherwise written consent is granted by Content Ready, you may not, directly or indirectly: (1) sell, modify, translate, copy, publish, transmit, distribute or otherwise disseminate the Content or Content Syndication Service or any portion thereof; or delete or fail to display any promotional taglines included therein; (2) rent, lease, or otherwise transfer rights to the Content or Content Syndication Service;  (3) display the name, logo, trademark or other identifier of another person on Client website, webpage or newsletter  in such a manner as to give the viewer the impression that such other person is an author, publisher or distributor of the Content or Content Syndication Service; (4) remove, conceal or delete any copyright or other proprietary notice or any credit-line or date-line on other mark or source identifier included in the Content or on the Content Syndication Service, including without limitation, the size, color, location or style of Content Ready’s marks; (5) encumber the Content or Content Syndication Service with any lien or security interest thereon; (6) make any representation or warranty on behalf of Content Ready pertaining to authorship or ownership of the Content or Content Syndication Service ; or (7) use the Content Syndication Service on any website, webpage or newsletter that contains nudity or pornographic material of any kind, displays material that exploits children under the age of 18 promotes or provides instructional information about illegal activities or physical harm or injury against any group or individual, or use the Service in any manner that is obscene, defamatory, libelous, invasive of personal privacy or misleading.
  4. Unless otherwise authorized by Content Ready in writing, Client will: (i) display the Content  in the exact form received, and not modify or edit any of the foregoing without Content Ready’s prior written consent; (ii) comply with all applicable laws and all limitations and restrictions (if any) placed by Content Ready on the use, display or distribution of any Content (“Usage Restrictions”); and (iii) provide Content Ready complete and accurate registration information when requested to do so and keep such registration information current. Client represents and warrants that its website, webpage and/or newsletter  do not and will not infringe any trademark, service mark, copyright, right to publicity, right of privacy or other intellectual property right of a third party, constitute false, deceptive or unfair advertising or disparagement under applicable law, or fail to comply with applicable laws and regulations (including, for example, licensing requirements and administrative or professional rules). Content Ready represents and warrants that it either is the sole owner of all U.S. trademark, copyright, patent rights and service marks in and to the Content Ready Service provided to Client for display. Content Ready shall not be liable for any claims or actions arising from any Content included in the Service that has been edited or altered in any manner by Client. In addition, Content Ready has no responsibility or liability for Clients use of the Content or Content Syndication Services or for the development, operation, and maintenance of Client website, webpage or newsletter.
  5. WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN THIS SECTION 2.3, CONTENT READY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY TYPE.  CONTENT READY PROVIDES THE SERVICE AND CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ACCURACY OR RELIABILITY. NO WARRANTY OR REPRESENTATION IS MADE OF THE AMOUNT OF INTEREST THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
  6. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL WINSIGHT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF SERVICES, CONTENT OR RESULTS, COMPUTER FAILURE OR MALFUNCTION, DAMAGES RESULTING FROM DISABLING OF THE SERVICE RELATED TO NON-PAYMENT OF LICENSE FEES, COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL CONTENT READY BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY CLIENT (IF ANY) IN CONNECTION WITH THE SERVICE, EVEN IF CONTENT READY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. TO THE EXTENT THAT THE FOREGOING LIMITATION IS NOT APPLICABLE FOR ANY REASON, THE LIABILITY OF THE PROVIDERS, THIRD PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

2.3. Brand Management Services. 

  1. Services Provided.  Content Ready Brand Management Services, as set forth on any applicable Work Order, may include client Web and email publishing assistance, preparation of daily newsletters, coordination of Content acquisition and creation services, placement of commercial advertising,, placement and usage of digital reporting and tracking systems, subscriber list segmentation and suppression as further set forth in the applicable IO.
  2. Fees and Costs Associated Services. Client shall be responsible and liable for all costs and fees associated with third-party tools and systems necessary and approved by Client to provide services, including but not limited to, hosting, email sending, suppression management.  Client shall also be responsible for fees and costs associated with services by Prime Media as set forth on the applicable IO.
  3. Disclaimer of Warranties. BRAND MANAGEMENT SERVICES BY PRIME MEDIA, ITS’ USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRIME MEDIA MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRIME MEDIA DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES.  PRIME MEDIA DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF ANY RESPONSE.  PRIME MEDIA WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATE REQUIREMENTS BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.  PRIME MEDIA SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE COSTS, ACTIONS OR SERVICES OF ANY THIRD-PARTY WITH WHOM IT OR CLIENT ENGAGE TO PROVIDE SERVICES.

4. Email List Management Services. 

  1. Services Provided.  Prime Media will undertake Email List Management services, as set forth on any applicable IO or Work Order, which may include the management and growth of Client’s subscriber database, procurement of Subscriber Acquisition campaigns and the sale and management of email marketing campaigns for Advertisers on behalf of Client.   Such Services may also include, management of commercial offers, structure and sending of commercial email marketing, management of database, suppression files, and reporting.
  2. Fees and Costs Associated Services. Client shall be responsible and liable for all costs and fees associated with third-parties necessary to provide services, including but not limited to, hosting, email sending, suppression management, legal compliance, third party tracking platforms.  Client shall pay to Prime Media a fee for services which shall be a percentage of Gross Revenue as set forth on the applicable IO.  In the event Prime Media as part of its Services collects revenue from an advertiser for distribution to Client, then Prime Media shall report to Client gross revenue received and shall remove their percentage portion prior to distribution of any funds to Client.  In all cases, Prime Media’s reporting shall be final and determinative.
  3. Disclaimer of Warranties. DEDICATED EMAIL MANAGEMENT SERVICES BY PRIME MEDIA ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRIME MEDIA MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRIME MEDIA DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES.  PRIME MEDIA DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF ANY RESPONSE.  PRIME MEDIA WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATE REQUIREMENTS BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.  PRIME MEDIA SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE COSTS, ACTIONS OR SERVICES OF ANY THIRD-PARTY WITH WHOM IT OR CLIENT ENGAGE TO PROVIDE SERVICES.

5. Applicable Provisions to All Services Provided by Prime Media. The following provisions apply to all Services provided by Prime Media:

  1. Term and Termination.  The term of this Agreement (“Term”) shall commence as of the Effective Date and shall remain in effect for a period of twelve (12) months, unless terminated by either Party, with or without cause, upon three (3) business day prior written notice delivered to the other party. After the initial twelve (12) month period, the Agreement shall automatically renew until terminated by either party.  Prime Media may terminate this agreement immediately upon written notice in the event Client violates an applicable law, rule or regulation or materially breaches this agreement.
  2. Limitation of Liability. PRIME MEDIA SHALL NOT BE LIABLE FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY.  IN ANY EVENT, PRIME MEDIA’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO IT BY CLIENT IN THE THIRTY (30) DAYS PRECEDING THE CLAIM.
  3. Indemnification. Client will defend, indemnify, and hold harmless Prime Media, and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from any breach of any of this Agreement or use or misuse of any Lead.  Prime Media reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.  No settlement may be consummated without Prime Media’s express written authorization, which shall not be unreasonably withheld.  Client will promptly notify Prime Media of any current, impending, or potential legal action, claim or investigation against it by a third party for matters which could reasonably extend to Prime Media when the same arise.
  4. Confidentiality.  
    1. The term “Confidential Information” shall mean: (i) any and all information which is disclosed by either party (“Owner”) to the other (“Recipient”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms of this Agreement, any IOs, and any proposals or other documents that preceded this Agreement, including without limitation the pricing of any services or Lead Data provided under this Agreement, any IOs, any proposals or other documents that preceded this Agreement.  Confidential Information may include, but not be limited to, trade secrets, computer programs, software, documentation, formulas, reporting functions, underwriting policies, practices and methodology, data, inventions, techniques, marketing plans, strategies, forecasts, employee information, financial information, confidential information concerning Owner’s business or organization, as Owner has conducted it or as Owner may conduct it in the future.  In addition, Confidential Information may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third-party software).
    2. Treatment of Confidential Information.  Owner’s Confidential Information shall be treated as strictly confidential by Recipient, and Recipient shall protect and preserve its confidential nature.  Recipient shall not directly or indirectly disclose or attempt to reverse engineer any Confidential Information to any third-party except to those third-parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business “need to know” or upon the express written consent of the Owner.  Notwithstanding the forgoing, nothing therein shall prohibit either party from: (i) providing any financial information required by an auditor or any underwriter of any public offering of a party’s stock, provided that the disclosure is subject to a non-disclosure agreement that prohibits the competitive use of or the further dissemination of the information; (ii) responding to legitimate inquiries from the investment community in relation to (i) and (ii). This clause shall be enforceable during the Term of this Agreement and will continue to remain enforceable after the termination of this Agreement.  This Agreement imposes no obligation upon the parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third-party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information or the use of Confidential Information; or (e) is required to be disclosed by court order or other lawful governmental action, but only to the extent so ordered, provided that the Recipient immediately notifies the Owner of such requirement so that the Owner may attempt to obtain a protective order either restricting or preventing such disclosure, and the Recipient cooperates with the Owner to resist such disclosure and protect its rights in the Confidential Information.
    3. Rights and Duties.  The Recipient shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information of the Owner.  Within fifteen (15) days after termination of this Agreement, each party shall certify in writing to the other that all copies of Confidential Information in any form in its possession or control, including partial copies, have been destroyed, returned to Owner, or used solely as the Owner so directs, except for those copies of Confidential Information which a party needs to retain for tax, accounting and legal purposes.
  5. Privacy Compliance. Client shall comply with all Federal, State and local laws, rules, regulations and ordinances governing or relating to privacy rights in connection with their performance under this Agreement including, without limitation, state online privacy protection laws.  Client shall implement such physical and other security measures as shall be necessary to: (i) ensure the secure handling, transmission, storage and disposal or any “nonpublic personal information” of the “customers” and “consumers” which the parties hold or handle; (ii) protect against any threats or hazards to the security and integrity of such nonpublic personal information; and (iii) protect against any unauthorized access to or use of such nonpublic personal information.  Upon request, Client will provide reasonably satisfactory evidence to permit the other party to confirm that it has satisfied its obligations as required under this Section.
  6. Dispute Resolution. This Agreement shall be governed by the laws of the United States and the State of California without respect to choice of law rules.  The Parties consent to have all disputes regarding this Agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division.  The Parties agree to conduct the arbitration in San Diego, California and each Party shall bear the costs of such arbitration.  The Parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them.  This provision was a bargained for relinquishment of both Parties rights to jurisdiction in their respective states or countries.  The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement.  The prevailing Party in any arbitration, shall be entitled to an award of attorney fees and costs for such arbitration.
  7. Miscellaneous.  
    1. Notices.  All notices, requests, consents, demands or other communications given under this Agreement shall be in writing and shall be deemed duly given and received: (i) upon personal delivery to the party to whom it is directed; (ii) three (3) business days after being sent by certified or registered mail return receipt requested, to the party to whom it is directed, postage and charges pre-paid; (iii) one business day after being sent by express overnight delivery by a national carrier to the party to whom it is directed; (iv) upon being transmitted by confirmed email or facsimile to the party to whom it is directed so long as the sender retains the confirmation copy indicating that the facsimile or email was received by the party to whom it is directed; or (v) upon actual delivery followed by the sending of an acknowledgment of receipt if sent by electronic mail or any other electronic means (electronic mail or any other electronic means shall constitute a writing for purposes of this Agreement).  All notices, requests, consents, demands and other communications shall be addressed at the addresses set forth in the opening paragraph of this Agreement (each, and “Insertion Order”), which addresses may be changed from time to time by either party by providing notice to the other in the manner set forth above.
    2. Severability.  If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
    3. Waiver.  The failure of a party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with that provision or any other provision of this Agreement.
    4. Entire Agreement.  This Agreement and the IO(s) contain the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement and the IO(s) supersede any prior written or oral discussions, agreements and/or undertakings of any kind and nature between the parties with respect to the subject matter of this Agreement.  Except as provided or contemplated by this Agreement, this Agreement shall not be amended except by a writing signed by both parties.
    5. Attorneys’ Fees and Costs.  If any legal action is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover its attorneys’ fees and other costs incurred in such legal action, both at trial and on appeal therefrom or petitions for review therefrom, in addition to any other relief to which it may be entitled.
    6. Relationship.  The parties agree that Prime Media is acting as an independent contractor in performing the Services and that the relationship between the Prime Media and Client shall not constitute a partnership, joint venture or agency.  Neither Prime Media nor any of Prime Media’s employees or agents (collectively referred to herein as the “Employees”): (i) is an employee, agent or legal representative of Client; or (ii) shall have any authority to represent Client or to enter into any contracts or assume any liabilities on behalf of Client.  Prime Media retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees.  Neither Prime Media nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Client employees.  Nothing in the Agreement is intended or shall be construed to give any person other than the parties hereto, their respective successors and assigns, any legal or equitable right, remedy or claim under or in respect of the Agreement or any provision contained herein.
    7. Counterparts and Facsimile Signatures.  This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.  Facsimile or Scanned signatures delivered hereunder shall be binding on the signatory party.vii

ELECTRONIC SIGNATURES.  Client acknowledges and agrees that by clicking on the button labeled “Agree” or such similar links as may be designated by Prime Media to accept the terms and conditions of this Agreement, Client is submitting a legally binding electronic signature and is entering into a legally binding contract.  Client acknowledges that its electronic submissions constitute its Agreement and intent to be bound by this Agreement and all terms contained therein.  Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”) or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY MEDIA COMPANY.  Further, Client  hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.